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United States v. Vaughn

November 3, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
TYRONE VAUGHN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 08 CR 18-Robert L. Miller, Jr., Chief Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED APRIL 14, 2009

Before KANNE, ROVNER and WOOD, Circuit Judges.

A jury convicted Tyrone Vaughn of possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Vaughn contends that the evidence was insufficient to support his conviction for possession of a firearm in furtherance of a drug trafficking crime. He also contests the district court's determination on sentencing of the amount of drugs he dealt, arguing that his own uncorroborated statement to police officers following his arrest is insufficient to establish the amount of drugs he bought and sold. We affirm.

I.

Tyrone Vaughn supplied crack cocaine to Richard Gee on a regular basis. The two men knew each other through their work as truck drivers, with Gee occasionally driving trucks for Vaughn. In November 2007, a federal law enforcement agent came to Gee's home looking for his son who was implicated in a criminal case. Gee decided to clean up his life and set a better example for his son, and so he told the Alcohol, Tobacco and Firearms ("ATF") agent, Jason Gore, that he wanted to act as a confidential informant for the ATF. Gee told Agent Gore about Vaughn's drug trafficking, and offered other information about Vaughn. Agent Gore accepted Gee's offer and began to process the paperwork to document Gee's anticipated work as a confidential informant.

On November 19, 2007, before Agent Gore finished processing the paperwork, Gee called to say that Vaughn had "fronted" him a pound of marijuana.*fn1 Agent Gore took custody of the marijuana, but was not pleased with this development because Gee was not yet documented and because Agent Gore could not control the situation. Approximately one week later, with the paperwork still pending, Gee called Agent Gore again, this time to report that Vaughn had just fronted him six additional pounds of marijuana. Agent Gore again took custody of the drugs and advised Gee to avoid Vaughn until the paperwork was complete.

By December 2, 2007, Gee was an officially sanctioned confidential informant. He owed Vaughn $650 for the initial one-pound delivery of marijuana, so Agent Gore arranged for Gee to deliver the money while carrying recording devices monitored by law enforcement officials. Gee delivered the money to Vaughn at his home, and as law enforcement listened, the two discussed payment for the additional six pounds. In 2006, Gee had given Vaughn an SKS rifle as payment for a quarter ounce of crack cocaine. Because Vaughn was a felon who was not allowed to own firearms, he had written up a receipt showing that Gee sold the rifle to Vaughn's wife for $300 After paying for the pound of marijuana, Gee asked Vaughn if he could buy back the rifle he had previously given Vaughn. The ATF had supplied Gee with an additional $300 to purchase the gun back. But Vaughn was not interested in the $300. Instead he proposed that if Gee could sell the additional six pounds of marijuana and pay for it in full, Vaughn would give the rifle back to Gee. Agent Gore had also prepared Gee to introduce a "business partner" to Vaughn. In reality, the business partner was an undercover ATF agent who posed as a truck driver by the name of "Wild Bill." Gee mentioned to Vaughn that Wild Bill had sold the first pound of marijuana and would be enlisted to sell the additional six pounds.

At the urging of the ATF agents, Gee subsequently set up a December 18, 2007 meeting among Gee, Vaughn and Wild Bill. The agents again arranged to record the meeting, which was set to take place in a department store parking lot. They supplied Gee and Wild Bill with $3300, the agreed-upon price for the six pounds of marijuana. Vaughn arrived at the parking lot in a car with three female passengers. He entered Gee's car and Wild Bill paid him $3300. Gee paid Vaughn an additional $200 to settle an old drug debt. Vaughn then engaged Wild Bill in a discussion of his ability to supply more marijuana, as well as ecstasy pills and cocaine. Vaughn then returned to his own car, where he pulled the SKS rifle (wrapped in a blanket) from the trunk. He brought it to Gee's car and placed it in the back seat.

Agent Gore then arranged for Gee and Wild Bill to meet Vaughn at a hotel on February 5, 2008, where Vaughn was arrested by the waiting agents. When Agent Gore searched Vaughn, he found 9.47 grams of crack cocaine in Vaughn's pocket, packaged into four small bags contained in one larger bag. Agent Gore read Vaughn his Miranda rights, Vaughn waived his right to remain silent and participated in an interview with the agent. At that interview, Vaughn told Agent Gore that the two trucks that comprised his trucking business were both inoperable, and that his entire income came from selling marijuana, cocaine and guns. Vaughn told Agent Gore that he had dealt cocaine, marijuana and firearms for most of his life. Apparently seeking to make a deal with Agent Gore, Vaughn offered information about other people in the drug trade, and other purchases and sales he had made, including a forty-pound purchase of marijuana and a quarter-kilogram purchase of crack cocaine. He also told Agent Gore the name of the person who was to supply additional guns to sell to Wild Bill.

In the end, no deal was struck and Vaughn was charged in a four-count indictment as we detailed above. After the government rested its case, Vaughn moved for a judgment of acquittal on the count charging possession of a firearm in furtherance of a drug trafficking crime. He contended that the firearm did not further the crime because Vaughn had already been paid in full for the six pounds of marijuana when Vaughn returned the gun to Gee. The court denied the motion, and denied the renewed motion at the close of evidence. The jury convicted Vaughn on all four counts. He appeals.

II.

On appeal, Vaughn raises two claims. First, he challenges his conviction for possessing a firearm in furtherance of a drug trafficking crime. According to Vaughn, his possession of the rifle did nothing to further any drug transaction. Second, Vaughn contests the district court's calculation of the amount of drugs at issue in determining a guidelines sentence for Vaughn. Vaughn argues that his own statements about drug ...


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